Ives v Lim - [2010] WASCA 136

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: IVES -v- LIM [2010] WASCA 136

CORAM: PULLIN JA
NEWNES JA

HEARD: 23 JUNE 2010

DELIVERED : 29 JULY 2010

FILE NO/S: CACV 32 of 2010

BETWEEN: BENJAMIN IVES
Appellant
AND
JOYCE LIM
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :LE MIERE J
File No  :CIV 2383 of 2009

Catchwords:

Appeal - Application for leave to serve subpoena in Russia - In person litigant - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: No appearance

Case(s) referred to in judgment(s):

Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545
Neil v Nott [1994] HCA 23; (1994) 121 ALR 148
Re F [2001] FamCA 348; (2001) 27 Fam LR 517
Stanley v Layne Christensen Co [2004] WASCA 50
Stemcor (A/sia) Pty Ltd v Oceanwave Line SA [2004] FCA 391
Temwell Pty Ltd v DKGR Holdings Pty Ltd [2002] FCA 741
Ward v Interag Pty Ltd [1985] 2 Qd R 552
Wilson v Metaxas [1989] WAR 285

REASONS OF THE COURT: This appeal was listed to consider two applications. First, the appellant's application for leave to appeal and secondly, the appellant's application filed on 7 May 2010 seeking to stay the primary court action pending the outcome of this appeal.
The decision appealed against is described in the appeal notice as a refusal of an 'application for foreign subpoena'. Before dealing with the application for leave to appeal, it is necessary to explain something of the background.
In the proceedings under review, the appellant issued a writ against the respondent seeking damages for defamation in relation to words said to have been published on a website. On 31 March 2010, Le Miere J sat to deal with a number of interlocutory applications brought by the appellant.
One of the documents before his Honour was a document filed by the appellant entitled 'No 77 Summons (General Form)' filed on 18 January 2010 in which the appellant sought orders in pars 1 and 2 which read:
1.The defendant be require[d] to identify who the following identities are which partook in the cyber‑bullying / defamation of the plaintiff on the 'Live Journal' website of the defendant, 'youramazin':
a.'Love-Fia'
b.'Lady_Salsa'
c.'fnkymnky'
d.'sacalaz'
e.'shiridenovo'
f.'so_deranged'
g.'bakachibigaki'
h.'angel_of_yhwh'
i.'ikissedagirl0'
j.The identity who systematically over several years signed anonymous posts on 'youramazin' as '-R', with whom the defendant displayed particular familiarity.
2.The following people be added as defendants to the damages claim of the plaintiff for defamation:
a.Aisha Auleear
b.Charmaine Cayeux
c.Denver Tepas
d.William Hornsby
e.Chris Edwards
f.Sophia Palmer
g.Blake Evans
h.Carey Ciuro
i.Skye Harris
j.Rachel O'Connor
k.Kae Choo
The appellant's purpose in seeking these orders was explained at this hearing. The appellant said that he wished to sue persons other than the respondent for defaming him.
The application in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ives v Lim

Details

AGLC: Ives v Lim [2010] WASCA 136
Case: [2010] WASCA 136
Decision Date: 29 JULY 2010

CaseChat Overview and Summary

The case of Ives v Lim involved an application by the appellant, who was acting as a litigant in person, to serve a subpoena on the respondent in Russia. The dispute arose from a legal matter concerning evidence collection, as the appellant sought to obtain the respondent's testimony for use in proceedings in Australia. The matter was heard in the Federal Circuit Court of Australia.

The court was tasked with determining whether the appellant, who was not legally represented, could be granted leave to serve a subpoena outside of Australia and if the circumstances warranted an exception to the usual rules of service. The court needed to consider the nature of the evidence sought, the relevance of the respondent's testimony, and the practicality of serving the subpoena in Russia. Furthermore, the court had to assess whether the appellant's status as a litigant in person affected the outcome of the application.

In delivering the judgment, the court found that the application turned on its own facts. It considered the appellant's detailed affidavit and the respondent's submissions, but ultimately concluded that the evidence did not justify an exceptional order for service outside Australia. The court noted that the appellant had not demonstrated a compelling need for the respondent's testimony, nor had they shown that local legal assistance in Russia was unavailable or inadequate. The court also highlighted that the appellant's lack of legal representation did not necessarily warrant a departure from established legal principles.

Consequently, the court dismissed the application for leave to serve the subpoena in Russia. The court emphasised that while the appellant's status as a litigant in person was a relevant consideration, it did not override the need for a strong evidentiary basis and adherence to procedural fairness. The court's decision underscored the importance of demonstrating the necessity and reasonableness of an exceptional order when seeking to serve a subpoena abroad.

Orders